Police, Excessive Force and US CERD and CAT Reviews

Guest Editor, Prof.  Jamil Dakwar, teaches a course entitled “Terror and Human Rights” in the Certificate Program on Terrorism in the John Jay College of Criminal Justice.   

 He writes:

International bodies tasked with monitoring adherence to human rights treaties have continually faulted the U.S. for its failure to comply with international standards around the use of force by law enforcement officers. Under human rights law, police officers shall, to the best of their ability, apply nonviolent means before resorting to the use of force and firearms. They may use firearms as a last resort – when strictly necessary to protect themselves or others against the imminent threat of death or serious injury. The intentional lethal use of firearms is justified only when “strictly unavoidable in order to protect life.” If the lawful use of force and firearms is unavoidable, then the authorities must use restraint and act in proportion to the seriousness of the offense.

           –  In its 2014 report, the UN Human Rights Committee (a body which         monitors compliance with a civil and political rights treaty the US ratified in 1992) expressed         concern “about the still high number of fatal shootings by certain police forces,” and reports of         excessive use of force by certain law enforcement officers, which has a disparate impact on         African-Americans. The Committee called on the United States to “step up its efforts to prevent         the excessive use of force by law enforcement” and “improve reporting of violations involving         the excessive use of force and ensure that reported cases of excessive use of force are effectively         investigated; that alleged perpetrators are prosecuted and, if convicted, punished with         appropriate sanctions; that investigations are re-opened when new evidence becomes         available; and that victims or their families are provided with adequate compensation.” 

• Similar concerns were voiced last summer by the UN Committee on the Elimination of Racial Discrimination, which reiterated its “previous concern at the brutality and excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on African Americans.” The Committee said that “despite the measures taken by the [United States] to prosecute law enforcement officials for criminal misconduct, “impunity for abuses …. remains a widespread problem.” The Committee urged the United States “to improve the reporting of cases involving the excessive use of force and strengthen oversight of, and accountability for, inappropriate use of force.” 

• After a grand jury failed to indict police officer Darren Wilson for the killing of unarmed, Black teenager, Michael Brown, the UN High Commissioner for Human Rights released a statement in which he expressed deep concern at “the disproportionate number of young African Americans who die in encounters with police officers…” and cited the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officials to reiterate the need for stricter policies around the use of lethal force by police officers.

• The Inter-American Commission on Human Rights has also criticized the excessive use of force by police in the United States. In October 2014, the ACLU of Michigan testified before the Commission about the failure of the DOJ to prosecute officers in the 2012 unjustified police shooting of Milton Hall. Jewel Hall, Milton Hall’s mother, provided a video statement as part of the testimony, in which she calls for reform in addressing “conditions that allow police to use excessive and deadly force with impunity.” Following the killings of Eric Garner in New York City and Mike Brown in Ferguson, MO, the Commission also released a statement in which it emphasized that “in cases of killings at the hand of State security forces it is necessary to ensure that investigations into the killings are carried out promptly, thoroughly and independently…” and highlighted the deaths of Mike Brown and Eric Garner as representative of  “the continuation of a disturbing pattern of excessive force on the part of police officers towards African-Americans and other persons of color…”

• Last month, the UN Committee Against Torture inquired about the steps taken to review police practices following recent events in Ferguson, Missouri and about the mechanisms of independent oversight and accountability that were established to ensure the prevention of excessive use of force by the police.

• Michael Brown Sr. told the UN Committee Against Torture: “I come before you today representing the voice of my son, and of parents and children of color across the country…  We agree with the U.N. Committee on the Elimination of Racial Discrimination’s recommendations and call to action for the United States to: Make a commitment to address racial discrimination in a comprehensive and coordinated manner and adopt a National Plan of Action on Racial Justice. Prohibit racial discrimination in all its forms in federal and state legislation, including indirect discrimination, covering all fields of law and public life.”

• In the Committee Against Torture’s 2014 Concluding Observations on the United States, the international human rights body expressed concern “about numerous reports of police brutality and excessive use of force by law enforcement officials, in particular against persons belonging to certain racial and ethnic groups, immigrants and LGBTI individuals, racial profiling by police and immigration offices and growing militarization of policing activities” and called for prompt, effective, and impartial investigations of all instances of police brutality and excessive use of force, to be conducted by independent mechanisms with no connections to the alleged perpetrators. The Committee highlighted reports of police violence in Chicago against African-American and Latino youths, “who are allegedly being consistently profiled, harassed and subjected to excessive force by Chicago Police Department officers” and generally “also expresse[d] its deep concern at the frequent and recurrent police shootings or fatal pursuits of unarmed black individuals.”  In addition, the Committee was concerned about the use of tasers against unarmed individuals and appalled especially by the number of reported deaths after the use of electrical discharge weapons. Finally, the Committee called for the provision of effective remedies and rehabilitation to the victims of police brutality.

• On December 5, 2014, UN experts on minority issues, racism, people of African descent, the right to peaceful assembly, and extrajudicial executions voiced their concerns on the decision to not indict the police officers responsible for the deaths of Mike Brown and Eric Garner, drawing attention to the disproportionate use of lethal force against African-Americans, protection of the right to peaceful protest in the aftermath of the decisions, and a call for “comprehensive examination of all laws that could have discriminatory impact on African-Americans to ensure that such laws are in full compliance with the country’s international legal obligations and relevant international standards.”

The United States government must ensure that policing practices, especially use of force policies nationwide, fall in line with the highest professional law enforcement standards and comply with international human rights standards on law enforcement conduct, with particular emphasis on improving accountability and increasing transparency with the general public and directly impacted communities.  The US must also take meaningful steps to address systemic racial discrimination in policing. In addition, there remains an urgent need for national comprehensive data on police use of force.

 The volume of reports from different international bodies, spanning the period of over a decade, highlights the continued failure of the U.S. to live up to international standards regarding the use of force, and especially against people of color.